# COUNTY OF BUTLER v. THOMAS W. WOLF

> District Court, W.D. Pennsylvania · September 14, 2020

URL: https://www.frixlaw.com/law-library/cases/10416348

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** September 14, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10416348

## How later opinions describe it (automated extraction)

- holding that a state anti-alien labor statute violated both equal protection and due process

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

COUNTY OF BUTLER, et al,
Plaintiffs, Civil Action No. 2:20-cv-677
v. Hon. William S. Stickman IV
THOMAS W. WOLF, et al,
Defendants.

OPINION
WILLIAM S. STICKMAN IV, United States District Judge
I. INTRODUCTION
The COVID-19 pandemic has impacted every aspect of American life. Since the novel
coronavirus emerged in late 2019, governments throughout the world have grappled with how
they can intervene in a manner that is effective to protect their citizens from getting sick and,
specifically, how they can protect their healthcare systems from being overwhelmed by an
onslaught of cases, hindering their ability to treat patients suffering from COVID-19 or any other
emergency condition. In this Country, founded on a tradition of liberty enshrined in our
Constitution, governments, governors, and courts have grappled with how to balance the
legitimate authority of public officials in a health emergency with the Constitutional rights of
citizens. In this case, the Court is required to examine some of the measures taken by
Defendants—Pennsylvania Governor Thomas W. Wolf and Pennsylvania Secretary of Health
Rachel Levine-——to combat the spread of the novel coronavirus. The measures at issue are: (1)

the restrictions on gatherings'; and, (2) the orders closing “non-life-sustaining” businesses and
directing Pennsylvanians to stay-at-home.
After reviewing the record in this case, including numerous exhibits and witness
testimony, the Court believes that Defendants undertook their actions in a well-intentioned effort
to protect Pennsylvanians from the virus. However, good intentions toward a laudable end are
not alone enough to uphold governmental action against a constitutional challenge. Indeed, the
greatest threats to our system of constitutional liberties may arise when the ends are laudable,
and the intent is good—especially in a time of emergency. In an emergency, even a vigilant
public may let down its guard over its constitutional liberties only to find that liberties, once
relinquished, are hard to recoup and that restrictions—while expedient in the face of an
emergency situation—may persist long after immediate danger has passed. Thus, in reviewing
emergency measures, the job of courts is made more difficult by the delicate balancing that □□□□
must undertake. The Court is guided in this balancing by principles of established constitutional
jurisprudence.
This action seeks a declaration that Defendants’ actions violated and continue to violate
the First Amendment, as well as both the Due Process and Equal Protection clauses of the
Fourteenth Amendment. Specifically, Plaintiffs argue that numeric limitations on the size of
gatherings violates the First Amendment. They argue that the components of Defendants’ orders
closing “non-life-sustaining” businesses and requiring Pennsylvanians to stay-at-home violated
both the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

' Pursuant to the July 15, 2020 Orders of Defendants, indoor events and gatherings of more than
25 people are prohibited, and outdoor events and gatherings of more than 250 people are
prohibited. (ECF Nos. 48-5, 48-6).

To examine the issues presented by Plaintiffs, the Court first had to determine what type
of scrutiny should be applied to the constitutional claims. As explained at length below, the
Court believes that ordinary canons of scrutiny are appropriate, rather than a lesser emergency
regimen. The Court next had to determine whether the question of the business closure and
related stay-at-home provisions of Defendants’ orders remain before it. The record shows that
they do. The language of the orders themselves, as well as testimony adduced at trial, show that
these provisions are merely suspended, not rescinded, and can be re-imposed at Defendants’ will.
This, in addition to the voluntary cessation doctrine, compelled the Court to examine issues
relating to these components of Defendants’ orders.
Having addressed the necessary threshold questions, the Court proceeded to the merits of
Plaintiffs’ claims and, after carefully considering the trial record and the parties extensive pre
and post-trial briefing holds and declares: (1) that the congregate gathering limits imposed by
Defendants’ mitigation orders violate the right of assembly enshrined in the First Amendment;
(2) that the stay-at-home and business closure” components of Defendants’ orders violate the
Due Process Clause of the Fourteenth Amendment; and (3) that the business closure components
of Defendants’ orders violate the Equal Protection Clause of the Fourteenth Amendment.
Hl. BACKGROUND
Pennsylvania saw its first presumptive positive cases of COVID-19 in the early days of
March 2020. (ECF No. 40, p. 1; ECF No. 37, § 6). On March 6, 2020, Governor Wolf signed a
Proclamation of Disaster Emergency noting that “the possible increased threat from COVID-19

Plaintiffs challenge only the business closure provisions which had designated every business
in the Commonwealth as “life-sustaining” or “non-life-sustaining” and closed the later. They do
not challenge components of those orders which permit the businesses to open subject to certain
restrictions, such as percentage occupancy limits. As such, the Court’s opinion does not impact
those components of Defendants’ orders.

constitutes a threat of imminent disaster to the health of the citizens of the Commonwealth” such
that it was necessary “to implement measures to mitigate the spread of COVID-19.” (ECF No.
42-1).
The Governor’s proclamation of a disaster emergency vested him with extraordinary
authority to take expansive action by executive order. Within the Governor’s office, a “group”
“was formed to work on issues related to the pandemic” both on the “economic development
side and pertaining to the business closures” and “on the health side, teams were formed to work
to understand the progress of the pandemic.” (ECF No. 75, p. 17).° It was an “interdisciplinary
team” with “individuals from the [GJovernor’s office and agencies being pulled together for
specific tasks,” including Secretary Levine. (ECF No. 75, pp. 17-18). The “group” never
reduced its purpose to writing, although “its stated purpose was to develop mechanisms to
respond to that emerging threat [i.e. a pandemic] in a very quick period of time.” (ECF No. 75,
p. 26). The names of its members remain unknown.
Part of the “group” consisted of a “reopening team” and a “policy team.” (ECF No. 75,
pp. 17-21). None of their “hundreds, if not thousands” of meetings were open to the public, no
meeting minutes were kept, and “formality was not the first thing on [their] minds.” (ECF No.
75, pp. 21, 26, 28, 30-31, 89-90, 134). The “reopening team” was “working to develop the
various guidance that was necessary to respond to the pandemic,” and it “published that on the
Commonwealth’s website and put out press releases.” (ECF No. 75, pp. 27-28, 32). It also
formulated the stay-at-home order. (ECF No. 75, pp. 33-34). The “policy team” was tasked
with creating the distinctions between “life-sustaining” and “non-life-sustaining” businesses as
well as preparing responses for the public on frequently asked questions. (ECF No. 75, pp. 21,

3 Throughout this Opinion, page citations are to pages of the applicable trial transcripts and
pleadings, and not the ECF document page number.

35). Its members consisted solely of employees from the Governor’s policy and planning office,
none of whom possess a medical background or are experts in infection control. (ECF No. 75,
pp. 22-25, 100-01).
The Governor never attended meetings of the various teams, but he “participated in
regular calls and updates with members of his administration” and he “was briefed and consulted
on key matters.” (ECF No. 75, p. 29). Ultimately, without ever conducting a formal vote, the
teams, by consensus when “there [was] a favorite approach everyone agree[d] on,” put together
the scope of an order and submitted it to the Governor through his Chief of Staff for approval.*
(ECF No. 75, pp. 45-47, 96-97). All of the orders, according to the Governor, were geared “to
protect the public from the novel and completely unprecedented pandemic” and “prevent the
spread of the disease.” (ECF No. 75, pp. 136-37). According to the Executive Deputy Secretary
for the Pennsylvania Department of Health, from a public health perspective, the intent of the
orders “was to reduce the amount of interaction between individuals.” (ECF No. 75, p. 209; ECF
No. 37, ¥ 7).
The various orders issued by Defendants will be discussed with specificity in the analysis
that follows as they relate to the particular legal issues in this case. That said, by way of
background, the Court would note the following relevant events.

For example, in regard to the July 15, 2020 Order that contained a limit of twenty-five percent
of the stated fire code maximum occupancy for indoor dining, policy team members reviewed
models from other states - Florida, Colorado, Texas, and California - “and then made a decision
based on collective input of the policy folks, the legal folks, the Department of Health and health
professionals as to what would be the best approach to move forward.” (ECF No. 74, pp. 49-51).
As to the provision in the Order that alcohol could only be served in the same transaction as a
meal, “it was one of the features of the California order that we [i.e. the policy team] did look at
and thought it made sense.” (ECF No. 74, p. 59). At the end of this process, the proposal for the
Order was submitted to the Governor for approval. (ECF No. 74, p. 51).

On March 13, 2020, the Governor announced a temporary closure of all K-12
Pennsylvania schools. (ECF No. 42-2). On March 19, 2020, the Governor issued an Order
regarding the closure of all Pennsylvania businesses that were “non-life-sustaining.”> (ECF No.
42-2). Enforcement of the Order was to begin on March 21, 2020 at 12:01 am. (ECF No. 42-2).
Secretary Levine issued a similar order on March 19, 2020. (ECF No. 42-14). Defendants then
issued stay-at-home orders for Allegheny County, Bucks County, Chester County, Delaware
County, Monroe County, Montgomery County, and Philadelphia County. (ECF Nos. 42-15 and
42-16). Enforcement of the Governor’s Order was slated to commence on March 23, 2020 at
8:00 PM. (ECF No. 42-15). Amended stay-at-home orders were issued by Defendants from
March 23, 2020 through March 31, 2020 to include other counties. (ECF Nos. 42-17 through 42-
29). On April 1, 2020, Defendants ordered all citizens of Pennsylvania to stay-at-home effective
immediately “except as needed to access, support, or provide life-sustaining businesses,
emergency or government services.” (ECF Nos. 42-30, 42-31, 47-2). Then, on April 9, 2020,
the Governor extended the school closures for the remainder of the 2019-2020 academic year.
(ECE No. 47-5).
The Governor issued a “Plan for Pennsylvania” on or about April 17, 2020, that included
a three phased reopening plan — moving from the “red phase” to the “yellow phase” to the “green

> A waiver process, whereby businesses could challenge their designation as “non-life-
sustaining,” existed from March 19, 2020 until April 3, 2020. (ECF No. 75, p. 226). A team of
economic development professionals within the Pennsylvania Department of Community and
Economic Development was assembled to review the waiver requests. (ECF No. 75, p. 214).
Originally, there were twelve team members and by the end of two weeks there were forty team
members plus fifty members answering the telephones. (ECF No. 75, p. 214). By the time the
waiver period closed, 42,380 waiver requests were received. 6,124 were granted, 12,812 were
denied, and 11,636 were determined not to need a waiver. (ECF No. 38, § 14).

phase” - with corresponding “work & congregate setting restrictions” and “social restrictions.”
(ECF Nos. 47- and 42-81). The stay-at-home provisions of Defendants’ orders were extended
through June 4, 2020.7. (ECF Nos. 42-48, 42-49, 42-50, and 42-51). On May 7, 2020,
Defendants issued an order for limited opening of businesses, lifting the stay-at-home
requirements in certain counties and moving them into the “yellow phase,” but imposing
gathering limits. (ECF Nos. 42-52 and ECF Nos. 42-53). Throughout May and June, various
counties were moved by Defendants from the “yellow phase” to the “green phase.” (ECF Nos.
42-54 through 42-61, and 42-63 through 42-75). The final county, Lebanon, was moved into the
“green phase” effective July 3, 2020. (ECF No. 42-74). The “green phase” eased most
restrictions with the continued suspension of the stay-at-home and business closure orders. (ECF
No. 75, pp. 36-37, 144-45).

6 The phases were developed by members of senior staff in the Governor’s Office who thought it
would be “understandable” to the citizens of Pennsylvania. (ECF No. 75, p. 75). The
Commonwealth partnered with Carnegie Mellon University to review demographic and health
data for each county. When considering the movement of counties from the “yellow phase” to
the “green phase,” the Department of Health relied on four metrics:
(1) whether the county had stable, decreasing, or low confirmed case counts for
the immediately proceeding 14-day period compared to the previous 14-day
period; (2) whether the contacts of cases within the county were being monitored;
(3) whether the Polymerase Chain Reaction (PCR) testing positivity rate, meaning
the number of positive cases per 100,000 population, had been less than 10% for
the past 14 days; and (4) whether hospital bed use was 90% per district population
in the county.
(ECF No. 37, § 25). As to the business closures, the Governor’s office based reopening
decisions “upon whether a business created a high-risk for transmission of COVID-19.” (ECF
No. 39, □ 17).
7 While the Governor’s representative testified that “our approach throughout the pandemic has
not been to take an aggressive enforcement approach,” the fact remains that Pennsylvanians were
cited for violating the stay-at-home and business closure orders. (ECF No. 74, pp. 61-69; ECF
Nos. 42-102, 48-7, 54-3).

On June 3, 2020, the Governor renewed his proclamation of disaster emergency for
ninety days. (ECF No. 42-62). On July 15, 2020, Defendants issued “targeted mitigation”
orders imposing limitations on businesses in the food services industry, closing nightclubs,
prohibiting indoor events and gatherings of more than 25 persons, and prohibiting outdoor
gatherings of more than 250 persons. (ECF Nos. 48-5, 48-6, 54-1). Most recently, on August
31, 2020, Governor Wolf renewed his proclamation of disaster emergency for ninety days stating
“the COVID-19 pandemic continues to be of such magnitude and severity that emergency action
is necessary to protect the health, safety, and welfare of affected citizens of Pennsylvania.” (ECF
Nos. 73, 73-1). This disaster declaration allows “based on the course and development of the
virus, that certain restrictions could be put back in place.” (ECF No. 75, p. 37).
Plaintiffs filed their Complaint on May 7, 2020, seeking a declaratory judgment that
Defendants violated certain constitutional rights through the issuance of orders designed to
combat the COVID-19 pandemic. Plaintiffs are comprised of three groups. The “County
Plaintiffs” consist of the Counties of Butler, Fayette, Greene, and Washington, Pennsylvania.
The “Political Plaintiffs” consist of the following individuals: Mike Kelly, an individual residing
in the County of Butler and a member of the United States House of Representatives; Daryl
Metcalfe, an individual residing in the County of Butler and a member of the Commonwealth of
Pennsylvania House of Representatives; Marci Mustello, an individual residing in the County of
Butler and a member of the Commonwealth of Pennsylvania House of Representatives; and Tim
Bonner, an individual doing business in the County of Butler and a member of the
Commonwealth of Pennsylvania House of Representatives. The “Business Plaintiffs” consist of
the following: Nancy Gifford and Mike Gifford, d/b/a Double Image; Prima Capelli, Inc.; Steven
Schoeffel; Paul F. Crawford, t/d/b/a Marigold Farm; Cathy Hoskins, t/d/b/a Classy Cuts Hair

Salon; R.W. McDonald & Sons, Inc.; Starlight Drive-In, Inc.; and, Skyview Drive-In, LLC. The
Complaint asserted five counts under 42 U.S.C. § 1983: Count I - Violation of The Takings
Clause; Count II — Substantive Due Process; Count III — Procedural Due Process; Count IV —
Violation of Equal Protection; and, Count V — Violation of the First Amendment. (ECF No. 1).
On May 20, 2020, Plaintiffs filed a Motion for Speedy Hearing of Declaratory Judgment
Action Pursuant to Rule 57 and a supporting brief. (ECF Nos. 9 and 10). Defendants filed their
Response on May 26, 2020. (ECF Nos. 12 and 13). Telephonic oral argument occurred on May
27, 2020. By May 28, 2020 Memorandum Opinion and Order, the Court held that expedited
proceedings were warranted to examine the claims in the Complaint at Count II by the Business
Plaintiffs, at Count IV by all Plaintiffs, and at Count V by all Plaintiffs. The Court denied the
motion as to Counts J and III. (ECF No. 15).
A Case Management Order was issued on June 2, 2020. (ECF No. 18). Expedited
discovery commenced on June 12, 2020. (ECF No. 18). The parties agreed that all direct
testimony for the Declaratory Judgment Hearing would be given via written Declarations and/or
Affidavits and the parties filed those documents along with a Joint Stipulation of Facts and Joint
Exhibits. (ECF Nos. 16, 19-34, 37-40, 42, 47, 48). Pre-hearing briefs were also submitted. (ECF
Nos. 36, 40). The declaratory judgment hearing occurred over two days, July 17, 2020 and July
22, 2020, with eighteen witnesses testifying. (ECF Nos. 74 and 75). Afterward, the parties
submitted comprehensive post-hearing briefs and additional adjudicative facts. (ECF Nos. 56,
59, 61, 64, 66, 67, 68, 71, 73).

I. ANALYSIS
A. THE COUNTY PLAINTIFFS CANNOT ASSERT CLAIMS UNDER SECTION 1983
Defendants argue that the County Plaintiffs—Butler, Fayette, Greene, and Washington
Counties—are not proper plaintiffs. They contend that the County Plaintiffs lack standing to
bring an action under 42 U.S.C. § 1983. The County Plaintiffs argue that they have standing on
both an individual basis and as representatives of their citizens. The Court holds that County
Plaintiffs are not proper parties.
The County Plaintiffs focus their argument on general concepts of Article III standing,
pointing to areas where the Counties may be able to illustrate specific harm to them, as counties,
resulting from Defendants’ actions. The alleged harm includes “interference with the holding of
public meetings that can be attended by all residents of the Counties, negative impacts on tax
revenue, negative impacts on reputation, negative impacts on the citizens of the respective
Counties, and loss of access to lawyers and law offices in those Counties.” (ECF No. 56, p. 30).
But even if these allegations of harm could establish general Article II standing, they are not
enough to confer standing under Section 1983.
Section 1983 does not confer any substantive rights, but rather, merely provides a cause
of action for the deprivation of constitutional rights under the color of state law. Counties are
creatures of the state. They do not possess rights under the Constitution. They cannot assert a
claim against the state—of which they are a creation—for violating rights that they do not
possess. See Williams v. Mayor and City Council of Baltimore, 289 U.S. 36, 40 (1933) (A
municipal corporation, created by a state for the better ordering of government, has no privileges
or immunities under the Federal Constitution which it may invoke in opposition to the will of its
creator.”); see also Pennsylvania Professional Liability Joint Underwriting Ass’n v. Wolf, 324 ¥.

10

Supp. 3d 519, 530 (M.D. Pa. 2018) (“Counties, municipalities, and other subdivisions owing
their existence to the state generally cannot assert constitutional claims against their creator.”);
Williams v. Corbett, 916 F. Supp. 2d 593, 598 (M.D. Pa. 2012) (same); Jackson v. Pocono
Mountain School District, 2010 WL 4867615, at *3 (M.D. Pa. Nov. 23, 2010) (“[A] number of
Circuits, including the Second, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh, have all held
that a political subdivision may not bring a federal suit against its parent state or its subdivisions
rights ....”).
The County Plaintiffs have attempted to assert claims in their own right and as the
representatives of their residents. While counties may undoubtedly litigate in many
circumstances, as Defendants aptly note, well established law prohibits the County Plaintiffs
from bringing claims of constitutional violations under Section 1983. As such, the County
Plaintiffs are not proper parties and cannot obtain relief in this case. They are hereby dismissed
as parties.
B. CONSTITUTIONAL CHALLENGES TO DEFENDANTS’ ORDERS
1) “Ordinary” canons of constitutional review should be applied to
Defendants’ orders.
Before moving into the substance of Plaintiffs’ constitutional claims, the Court will
examine what “lens” it should use to review those claims. In other words, what is the
appropriate standard, or regimen of standards, that the Court must use to weigh the
constitutionality of the claims? Plaintiffs base their constitutional arguments on ordinary
constitutional scrutiny, whereas Defendants argue that their actions should be afforded a more
deferential standard as emergency measures relating to public health.
Over the last century, federal courts have developed a regimen of tiered scrutiny for
examining most constitutional issues-——rational basis scrutiny, intermediate scrutiny and strict

11

scrutiny. The appropriate standard depends on the nature of the claim and, specifically, the
nature of the right allegedly infringed. In this case, Defendants point to the emergency nature of
the challenged measures and correctly argue that they have broad authority under state police
powers in reacting to emergency situations relating to public health and safety. They contend
that the traditional standards of constitutional scrutiny should not apply, but rather, that a more
deferential standard as articulated in Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905), should
be used. Defendants contend that Jacobson sets forth a standard that grants almost extraordinary
deference to their actions in responding to a health crisis and that, based on that deference,
Plaintiffs’ claims are doomed to fail. In other words, Defendants argue that no matter which
traditional level of scrutiny that the underlying constitutional violation would normally require, a
more deferential standard is appropriate.
In Jacobson, the Supreme Court upheld a Massachusetts statute empowering municipal
boards of health to require that all residents be vaccinated for smallpox.’ Jacobson was
prosecuted for refusing to comply with the City of Cambridge’s vaccination mandate. J/d. at 13.
He argued that the mandatory vaccine regimen “was in derogation of the rights secured to [him]
by the preamble to the Constitution of the United States, and tended to subvert and defeat the
purposes of the Constitution as declared in its preamble.” Jd. at 13-14. Jacobson also contended
that the measure violated the Fourteenth Amendment and the “spirit of the Constitution.” Jd. at
14.
The Supreme Court rejected out-of-hand the arguments that the measure violated the
Constitution’s preamble or “spirit,” explaining that only the specific, substantive provisions of
the Constitution can give rise to an actionable claim of rights. The Supreme Court, likewise,

The statute provided an exception for children who had a certificate signed by a physician
representing that they were “unfit subjects for vaccination.” Jd. at 12-13.
12

rejected Jacobson’s challenge under the Fourteenth Amendment. It explained that the States
possess broad police powers which encompass public health measures:
[a]lthough this court has refrained from any attempt to define the limits of that
power, yet it has distinctly recognized the authority of a state to enact quarantine
laws and ‘health laws of every description;’ indeed, all laws that relate to matters
completely within its territory and which do not by their necessary operation
affect the people of other states.
Id. at 25. The Supreme Court explained that “the police power of a state must be held to
embrace, at least, such reasonable regulations established directly by legislative enactments as
will protect the public health and the public safety.” Jd.
Although the Jacobson Court unquestionably afforded a substantial level of deference to
the discretion of state and local officials in matters of public health, it did not hold that deference
is limitless. Rather—it closed its opinion with a caveat to the contrary:
Before closing this opinion we deem it appropriate, in order to prevent
misapprehension [of] our views, to observe—perhaps to repeat a thought already
sufficiently expressed, namely—that the police power of a state, whether
exercised directly by the legislature, or by a local body acting under its authority,
may be exerted in such circumstances, or by regulations so arbitrary and
oppressive in particular cases, as to justify the interference of the courts to prevent
wrong and oppression.
Id. at 38. There is no question, therefore, that even under the plain language of Jacobson, a
public health measure may violate the Constitution.
Jacobson was decided over a century ago. Since that time, there has been substantial
development of federal constitutional law in the area of civil liberties. As a general matter, this
development has seen a jurisprudential shift whereby federal courts have given greater deference
to considerations of individual liberties, as weighed against the exercise of state police powers.
That century of development has seen the creation of tiered levels of scrutiny for constitutional
claims. They did not exist when Jacobson was decided. While Jacobson has been cited by some
modern courts as ongoing support for a broad, hands-off deference to state authorities in matters
13

of health and safety, other courts and commentators have questioned whether it remains
instructive in light of the intervening jurisprudential developments.
In Bayley’s Campground, Inc. v. Mills, _ F. Supp. 3d __, 2020 WL 2791797 (D. Me.
May 29, 2020), a district court examined whether the governor of Maine’s emergency order
requiring, inter alia, visitors from out of state to self-quarantine, was constitutional. As here,
before proceeding to its analysis of the substantive legal issues, the court examined how it should
weigh the issues—according to a very deferential analysis purportedly consistent with Jacobson,
as advocated by the governor, or under “regular” levels of scrutiny advocated by the plaintiffs.
The district court examined Jacobson and, specifically, whether it warranted the application of a
looser, more deferential, standard than the “regular” tiered scrutiny used on constitutional
challenges. It observed: “[i]n the eleven decades since Jacobson, the Supreme Court refined its
approach for the review of state action that burdens constitutional rights.” Jd at *8 (citing
Planned Parenthood y. Casey, 505 U.S. 833, 857 (1992)). See also Planned Parenthood, 505
US. at 857 (citing Jacobson, 197 U.S. 24-30) (affirming that “a State’s interest in the protection
of life falls short of justifying any plenary override of individual liberty claims.”). The district
court declined to apply a standard below those of the established tiered levels of scrutiny. It
stated:
[T]he permissive Jacobson rule floats about in the air as a rubber stamp for all but
the most absurd and egregious restrictions on constitutional liberties, free from the
inconvenience of meaningful judicial review. This may help explain why the
Supreme Court established the traditional tiers of scrutiny in the course of the 100
years since Jacobson was decided.
Bayley’s Campground, at *8.
Justice Alito’s dissent (joined by Justices Thomas and Kavanaugh) to the Court’s denial
of emergency injunctive relief in Calvary Chapel Dayton Valley v. Sisolak, _ U.S. ___, 2020

14

WL 4251360 (Jul. 24, 2020) (Alito, J., dissenting), also casts doubt on whether Jacobson can,
consistent with modern jurisprudence, be applied to establish a diminished, overly deferential,
level of constitutional review of emergency health measures.’ In arguing that the Supreme Court
should have granted the requested injunction, Justice Alito stated: “[w]e have a duty to defend
the Constitution, and even a public health emergency does not absolve us of that responsibility.”
Id. at *1. Justice Alito pointed out:
For months now, States and their subdivisions have responded to the pandemic by
imposing unprecedented restrictions on personal liberty, including the free
exercise of religion. This initial response was understandable. In times of crisis,
public officials must respond quickly and decisively to evolving and uncertain
situations. At the dawn of an emergency—and the opening days of the COVID-
19 outbreak plainly qualify—public officials may not be able to craft precisely
tailored rules. Time, information, and expertise may be in short supply, and those
responsible for enforcement may lack the resources needed to administer rules
that draw fine distinctions. Thus, at the outset of an emergency, it may be
appropriate for courts to tolerate very blunt rules. In general, that is what has
happened thus far during the COVID-19 pandemic.
But a public health emergency does not give Governors and other public officials
carte blanche to disregard the Constitution for as long as the medical problem
persists. As more medical and scientific evidence becomes available, and as
States have time to craft policies in light of that evidence, courts should expect
policies that more carefully account for constitutional rights.
Id. at *2. Justice Alito found unreasonable the argument that Jacobson could be used to create a
deferential standard whereby public health measures will pass scrutiny unless they are “beyond
all question a plain, palpable invasion of rights secured by the fundamental law.” Jd. at *5.
Rather, he reasoned, “it is a mistake to take language in Jacobson as the last word on what the
~ Constitution allows public officials to do during the COVID-19 pandemic... . It is a
considerable stretch to read the [Jacobson] decision as establishing the test to be applied when

° The Court is aware that neither the Supreme Court’s denial of review, nor Justice Alito’s
dissent are precedential, however, in light of the facts and circumstances in this case, the Court
finds Justice Alito’s dissent instructive and persuasive regarding the issues presented.
15

statewide measures of indefinite duration are challenged under the First Amendment or other
provisions not at issue in that case.” Id. at *5.
The district court in Bayley’s Campground cited to a recent scholarly article examining
the type of constitutional scrutiny that should be applied to challenges to COVID-19 mitigation
strategies—Lindsay F. Wiley & Stephen I. Vladeck, Coronavirus, Civil Liberties, and the
Courts: the Case Against “Suspending” Judicial Review, 133 Harv. L. REV. F. 179 (2020)."°
The Court has reviewed the professors’ paper and finds it both instructive and persuasive. There,
the learned professors argue that Jacobson should not be interpreted as permitting the
“suspension” of traditional levels of constitutional scrutiny in reviewing challenges to COVID-
19 mitigation measures. Jd. at 182 (“In this Essay, we argue that the suspension approach to
judicial review is wrong-——not just as applied to governmental actions taken in response to novel
coronavirus, but in general.”). The professors highlight three objections to an overly deferential
“suspension” model standard of review:
First, the suspension principle is inextricably linked with the idea that a crisis is of
finite—and brief—duration. To that end, the principle is ill-suited for long-term
and open-ended emergencies like the one in which we currently find ourselves.
Second, and relatedly, the suspension model is based upon the oft-unsubstantiated
assertion that “ordinary” judicial review will be too harsh on government actions
in a crisis—and could therefore undermine the efficacy of the government’s
response. In contrast, as some of the coronavirus cases have already
demonstrated, most of these measures would have met with the same fate under
“ordinary” scrutiny, too. The principles of proportionality and balancing driving
most modern constitutional standards permit greater incursions into civil liberties
in times of greater communal need. That is the essence of the “liberty regulated
by law” described by the Court in Jacobson.
Finally, the most critical failure of the suspension model is that it does not
account for the importance of an independent judiciary in a crisis—“as perhaps

0 Lindsay F. Wiley is Professor of Law and Director, Health Law and Policy Program,
American University Washington School of Law. Stephen I. Vladeck is the A. Dalton Cross
Professor of Law, University of Texas School of Law. Jd. at 179.
16

the only institution that is in any structural position to push back against potential
overreaching by the local, state, or federal political branches . . . . Otherwise, we
risk ending up with decisions like Korematsu v. United States—in which courts
sustain gross violations of civil rights because they are either unwilling or unable
to meaningfully look behind the government’s purported claims of exigency.
Id. at 182-83 (internal footnotes and citations omitted). These objections, especially the problem
of ongoing and indefinite emergency measures, largely mirror the concern expressed by Justice
Alito in Calvary Chapel.
The Court shares the concerns expressed by Justice Alito, as well as Professors Wiley
and Vladeck, and believes that an extraordinarily deferential standard based on Jacobson is not
appropriate. The Court will apply “regular” constitutional scrutiny to the issues in this case. Two
considerations inform this decision—the ongoing and open-ended nature of the restrictions and
the need for an independent judiciary to serve as a check on the exercise of emergency
government power.
First, the ongoing and indefinite nature of Defendants’ actions weigh strongly against
application of a more deferential level of review. The extraordinary emergency measures taken
by Defendants in this case were promulgated beginning in March—six months ago. What were
initially billed as temporary measures necessary to “flatten the curve” and protect hospital
capacity have become open-ended and ongoing restrictions aimed at a very different end—
stopping the spread of an infectious disease and preventing new cases from arising—which
requires ongoing and open-ended efforts. Further, while the harshest measures have been
“suspended,” Defendants admit that they remain in-place and can be reinstated sua sponte as and
when Defendants see fit. In other words, while not currently being enforced, Pennsylvania
citizens remain subject to the re-imposition of the most severe provisions at any time. Further,
testimony and evidence presented by Defendants does not establish any specified exit gate or end

17

date to the emergency interventions. Rather, the record shows that Defendants view the presence
of disease mitigation restrictions upon the citizens of Pennsylvania as a “new normal” and they
have no actual plan to return to a state where all restrictions are lifted. It bears repeating; after
six months, there is no plan to return to a situation where there are no restrictions imposed upon
the people of the Commonwealth. Sam Robinson, a Deputy Chief of Staff to the Governor,
testified as much when asked if there was a phase of reopening beyond the “green phase” where
there would be no restrictions:
Q. You can’t move from green to no restrictions whatsoever? There’s no
way to do that under this system, right?
A. So there are a number of options for, you know, what post green
potentially could look like, and that could just be entirely removal of all
restrictions or replacement with other restrictions, maybe not a color-
coordinated system. There are certainly other options on the July 15%
order that we’ve referenced from last week, certainly an approach that was
a change that was not strictly speaking within the red/yellow/green
framework as originally contemplated.
And we are doing our best to respond to the pandemic nimbly and not
being locked into a specific approach but to target areas where we see
spread and things that we can do to balance the need to reopen the
economy and continue moving Pennsylvania back towards the new normal
that the governors and others have talked about while at the same time
taking targeted mitigation steps to prevent the spread of the virus, which
is what’s embodied in that July 15" order.
Q. What is the new normal? What does the governor mean by the new
normal? What’s that mean?
A. Well, we’re still evolving into it, but obviously it’s more consciousness
about steps to prevent the spread of COVID and ways that Pennsylvanians
are having to be more conscious of those mitigation efforts and take steps
to be responsible individually to protect fellow Pennsylvanians.
(ECF No. 75, pp. 70-71). Even when the existing restrictions are replaced, it appears to be the
intent of Defendants to impose and/or keep in place some ongoing restrictions. Mr. Robinson
testified that “early on it was sort of just assumed that beyond green was no restrictions, and that

18

may be ultimately where we get.” (ECF No. 75, p. 75). However, the position is now less clear
in that Mr. Robinson hedged on whether any future period of no restrictions can be foreseen.
(ECF No. 75, p. 76) (“at the point that we are ready to remove all of the restrictions, we will have
a discussion about how specifically to do that. It may be that the whole—you know, that whole
system is replaced with just very limited restrictions.) (emphasis added).
Courts are generally willing to give temporary deference to temporary measures aimed at
remedying a fleeting crisis. Wiley & Vladeck, supra p. 16, at 183. Examples include natural
disasters, civil unrest, or other man-made emergencies.'! There is no question, as Justice Alito
reasoned in Calvary Chapel, that courts may provide state and local officials greater deference
when making time-sensitive decisions in the maelstrom of an emergency. But that deference
cannot go on forever. It is no longer March. It is now September and the record makes clear that
Defendants have no anticipated end-date to their emergency interventions. Courts surely may be
willing to give in a fleeting crisis. But here, the duration of the crisis—in which days have
turned into weeks and weeks into months—already exceeds natural disasters or other episodic
emergencies and its length remains uncertain. Wiley & Vladeck, supra page 16, at 184. Faced
with ongoing interventions of indeterminate length,!* “suspension” of normal constitutional
levels of scrutiny may ultimately lead to the suspension of constitutional liberties themselves.

See generally Moorhead v. Farrelly, 727 F. Supp. 193 (D. V.I. 1989) (discussing the
destruction resulting from Hurricane Hugo); United States v. Chalk, 441 F.2d 1277 (4th Cir.
1971) (discussing widespread civil unrest resulting from racial incident); In re Juan C., 28
Cal.App.4th 1093 (Ca. 1994) (discussing measures implemented to combat widespread looting
and violence resulting from Los Angeles rioting).
2 Tt is true that under 35 Pa.C.S.A § 7301(c), the Governor’s declaration of emergency, and
related measures, will expire after ninety days. However, the Governor is able to sua sponte
issue a continued emergency declaration. In Wolfv. Scarnati, A.3d__, 2020 WL 3567269 (Pa.
Jul. 1, 2020), the Pennsylvania Supreme Court held that a vote of the legislature was powerless
to vitiate the declaration, unless the governor signed off (as in normal legislation). See id. at *11
19

Second, ordinary constitutional scrutiny is necessary to maintain the independent
judiciary’s role as a guarantor of constitutional liberties—even in an emergency. While
principles of balancing may require courts to give lesser weight to certain liberties for a time, the
judiciary cannot abrogate its own critical constitutional role by applying an overly deferential
standard.
While respecting the immediate role of the political branches to address emergent
situations, the judiciary cannot be overly deferential to their decisions. To do so risks
subordinating the guarantees of the Constitution, guarantees which are the patrimony of every
citizen, to the immediate need for an expedient solution. This is especially the case where, as
here, measures directly impacting citizens are taken outside the normal legislative or
administrative process by Defendants alone. There is no question that our founders abhorred the
concept of one-person rule. They decried government by fiat. Absent a robust system of checks
and balances, the guarantees of liberty set forth in the Constitution are just ink on parchment.
There is no question that a global pandemic poses serious challenges for governments and for all
Americans. But the response to a pandemic (or any emergency) cannot be permitted to

(“because H.R. 836 was not presented to the Governor, and, in fact, affirmatively denied the
Governor the opportunity to approve or veto that resolution, H.R. 836 did not conform with the
General Assembly’s statutory mandate in section 7301(c) or with the Pennsylvania
Constitution.”). Thus, in practical effect, absent a veto-override, the Governor’s orders can be
reissued without limit. Professors Wiley & Vladeck recognized that this situation could lead to
the situation of the permanent emergency: “[a]t least under federal law, emergencies, once
declared, tend not to end; the President can unilaterally extend national emergency declarations
on an annual basis in perpetuity, and can be stopped only by veto-proof supermajorities of both
houses of Congress. And unless courts are going to rigorously review whether the factual
justification for the emergency measure is still present[,] . . . the government can adopt measures
that wouldn’t be possible during “normal” times long after the true exigency passed.” Wiley &
Vladeck, supra page 16, at 187. On August 31, 2020, the Governor renewed the emergency
declaration, extending his extraordinary authority for an additional ninety days. (ECF No. 73-1).
Again, absent an extraordinary veto-proof vote of the General Assembly, there is no limit on the
number of times the Governor may renew the declaration and vest himself with extraordinary
unilateral powers.
20

undermine our system of constitutional liberties or the system of checks and balances protecting
those liberties. Here, Defendants are statutorily permitted to act with little, if any, meaningful
input from the legislature. For the judiciary to apply an overly deferential standard would
remove the only meaningful check on the exercise of power.
Using the normal levels of constitutional scrutiny in emergency circumstances does not
prevent governments from taking extraordinary actions to face extraordinary situations. Indeed,
an element of each level of scrutiny is assessing and weighing the purpose and circumstances of
the government’s act. The application of normal scrutiny will only require the government to
respect the fact that the Constitution applies even in times of emergency. As the Supreme Court
has observed: “[t]he Constitution was adopted in a period of grave emergency. Its grants of
power to the federal government and its limitations of the power of the States were determined in
the light of emergency, and they are not altered by emergency.” Home Building & Loan Ass’n.
v. Blaisdell, 290 U.S. 398, 425 (1934).'° Ordinary constitutional scrutiny will be applied.
2) The gathering limits imposed by Defendants’ orders violate the First
Amendment.

‘5 In a recent case brought in the Middle District of Pennsylvania, plaintiffs brought suit against
Governor Wolf and others, contending that their constitutional rights were violated as a result of
the Governor’s Orders, and to that extent, requested the district court to temporarily restrain the
enforcement of the Orders. Benner v. Wolf, __F. Supp. 3d , 2020 WL 2564920, at *1-3
(M.D. Pa. May 21, 2020). The district court addressed, inter alia, whether the Governor’s
Orders exceeded the permissible scope of his police powers, and in doing so, applied the
deferential Jacobson standard of review. Id. at *6. The district court held that the plaintiffs had
failed to establish that the Orders were not “reasonably necessary” or “unduly burdensome”
because they could not provide evidentiary support to contradict the defendant’s broad policy
decisions. Jd. The immediate case, however, is readily distinguishable because the Court now
has the benefit of a developed evidentiary record, which includes specific reasoning and
testimony from the parties. The Court also recognizes that the Pennsylvania Supreme Court’s
decision in Friends of Danny DeVito v. Wolf, 227 A.3d 872 (Pa. 2020), addresses some of the
federal constitutional issues presented in this case and the court reviewed those issues through a
more deferential standard. While the Pennsylvania Supreme Court is final on questions of
Pennsylvania law, it does not bind the Court on federal questions.
21

Defendants’ July 15, 2020 Order imposes limitations on “events and gatherings” of 25
persons for indoor gatherings and 250 persons for outdoor gatherings. The Order defines “events
and gatherings” as:
A temporary grouping of individuals for defined purposes, that takes place over
a limited timeframe, such as hours or days. For example, events and gatherings
include fairs, festivals, concerts, or shows and groupings that occur within larger,
more permanent businesses, such as shows or performances within amusement
parks, individual showings of movies on a single screen/auditorium within a
multiplex, business meetings or conferences, or each party or reception within a
multi-room venue.
The term does not include a discrete event or gathering in a business in the retail
food services industry addressed by Section 1 [of the July 15, 2020, Order].
The maximum occupancy limit includes staff.
(ECF No. 48-5, Section 2) (emphasis added). The Order has no end-date or other mechanism for
expiration, but rather, purports to remain in effect “until further notice.” (ECF No. 48-5, Section
8). By its own language, the congregate gathering limitation imposed is broad—applying to any
gathering of individuals on public or private property for any purpose—including social
gatherings.'* The July 15, 2020 Order is an amendment to the May 27, 2020 Order setting forth
the parameters of the “green phase” of Defendants’ reopening plan. The difference between the
two orders is that the May 29, 2020 Order did not include the 25 person indoor limit, but rather
provided: “[a]ny gathering for a planned or spontaneous event of greater than 250 individuals is
prohibited.” (ECF No. 42-58).
The gathering limits specifically exempt religious gatherings and certain commercial
operations set forth in the Order and previous orders. Section 1 of the July 15, 2020 Order

'4 For example, the Governor’s “Process to Reopen Pennsylvania” classifies the congregate
limits in the category of “social restrictions.” (ECF 42-81, p. 4). Mr. Robinson confirmed that
they apply to purely personal or social gatherings, like weddings. (ECF No. 75, p. 54).

22

imposes an occupancy limit of twenty-five percent (25%) of “stated fire code maximum
occupancy” for bars and, apparently, restaurants. (ECF No. 48-5, Section 1). The May 27, 2020
Order permits businesses (other than businesses in the retail food industry, personal services,
such as barbers and salons, and gyms—all of which are given other guidance) to operate at either
fifty percent (50%) or seventy-five percent (75%) of their building occupancy limits. (ECF No.
42-58, Section 1). Mr. Robinson confirmed that the gathering limits do not apply to normal
business operations:
[T]he 25-person restriction that we were discussing previously does not apply in
the course of general business operations. So you could have more than 25
people in that store. There’s no restriction of that sort that would be applicable,
and I think we’ve tried to clarify that in many different forms, the sort of
applicability of the occupancy restrictions—sorry. The discrete event limits.
But to the extent—and this is just to provide an overly full answer. To the extent
that a store had a special sales event or something of that sort, a product
demonstration, they would be limited to 25 people in that specific instance. But
in any other instance there would be no applicable limit within the store for their
general business beyond the kind of occupancy limits that would be in place.
(ECF No. 75, pp. 139-40).
The record is unclear as to whether the orders limiting the size of gatherings apply to
protests. The plain language of the orders makes no exception for protests, which seemingly run
directly contrary to the plain language of the May 27, 2020 Order that states, “[a]ny gathering for
a planned or spontaneous event of greater than 250 individuals.” (ECF No. 42-58). However,
the record unequivocally shows that Defendants have permitted protests, and that the Governor
participated in a protest which exceeded the limitation set forth in his order and did not comply
with other restrictions mandating social distancing and mask wearing. (ECF No. 42-101).
Finally, Plaintiffs make much of the fact that Defendants have provided an exception to
the congregate gathering limit as applied to a major event in central Pennsylvania referred to as

23

“Spring Carlisle,” which is an auto show and flea market. (ECF 64). After being sued in the
Pennsylvania Commonwealth Court because of the impact of the congregate limits on the event,
Secretary Levine settled the action by giving a substantial exception for the event. Specifically, □
indoor occupancy was permitted up to an occupancy of 250 individuals or 50% of the maximum
building occupancy. (ECF 64-1, p. 1). Outdoor occupancy was permitted up to 20,000
individuals, which is 50% of the normal capacity. (ECF No. 64-1, p. 2).
Plaintiffs argue that the limits on gatherings imposed by Defendants violate their right of
assembly and their related right of free speech. Specifically, the Political Plaintiffs (Metcalfe,
Mustello, Bonner and Kelly) contend that the gathering limits unconstitutionally violate their
right to hold campaign gatherings, fundraisers, and other events. Each argued that the
congregate gathering limitations hindered their ability to campaign and limited their ability to
meet and connect with voters. By way of example, Congressman Kelly stated:
We were also forced to cancel multiple fundraisers and dinners. In the past, these
fundraisers have financed a significant portion of my campaigns, yet for this
election I had to entirely forgo holding them. My campaign was also forced to
cancel a political rally for me to speak to constituents due to both travel
prohibitions and congregate rules.
(ECF No. 27, p. 2). On a similar note, Representative Mustello testified that a planned
fundraiser had to be scrapped after the July 15, 2020 Order decreased indoor capacity to twenty-
five (25) people. (ECF No. 74, pp. 166-67). She testified that she intended to host it outside,
but she was concerned about the weather. (ECF No. 74, p. 167). Political Plaintiffs contend that
the gathering limits unfairly target some gatherings, while permitting others—such as
commercial gatherings or protests.
Defendants contend that the gathering limits pass constitutional muster because they are
legitimate exercises of Defendants’ police power in an emergency situation and are content-

24

neutral. (ECF No. 66, p. 24). They contend that “[e]ven in a traditional public forum, the
government may impose content-neutral time, place and manner restrictions provided that the
restrictions are justified without reference to the content of the regulated speech, that they are
narrowly tailored to serve a significant government interest, and that they leave open ample
alterative channels for communication of the information.” (ECF No. 66, pp. 24-25) (citing
Startzell v. City of Philadelphia, 533 F.3d 183, 197 d Cir. 2008)). Defendants argue that the
restrictions leave open many different avenues of campaigning and communication, such as
internet, mailings, yard signs, speaking to the press, television and radio. (ECF No. 66, p. 25).
Finally, Defendants reject the contention that the stated (although not in the orders themselves)
permission to attend protests constituted impermissible content-based distinctions on the
applicability of the limits. They point to the fact that some of the Plaintiffs attended rallies and
protests against Defendants’ measures and that neither they nor other protesters were subject to
enforcement action, “even when social distancing protocols are not adhered to.” (ECF No. 66, p.
27) (citing Benner v. Wolf, _ F. Supp. 3d __, 2020 WL 2564920, at *8 (M.D. Pa. May 21,
2020)).
a) The Court will apply intermediate scrutiny to Plaintiffs’ challenges.
The Court must first determine what standard of constitutional scrutiny to apply to the
congregate limits set forth in Defendants’ orders. The right of assembly is a fundamental right
enshrined in the First Amendment: “Congress shall make no law . . . abridging the freedom of
speech, or of the press, or the right of the people to peaceably assemble, and to petition the
Government for a redress of grievances.” U.S. CONST. AMEND. 1, in relevant part. The right of
assembly has long been incorporated to the States. See DeJonge v. Oregon, 299 U.S. 353, 259-
260 (1937). Although the right to peaceably assemble is not coterminous with the freedom of

25

speech, they have been afforded nearly identical analysis by courts for nearly a century. See
generally Nicholas S. Brod, Rethinking a Reinvigorated Right to Assemble, 63 DUKE L.J. 155
(2013). See also DeJonge, 299 U.S. at 364 (“The right of peaceable assembly is a right cognate
to those of free speech and free press and is equally fundamental.”); Clark v. Community for
Creative Non-Violence, 468 U.S. 288, 293 (1984) (applying speech analysis to a gathering on the
National Mall); Shuttlesworth v. Birmingham, 394 U.S. 147, 152-53 (1969) (While not “speech”
in the purest sense of the word, gathering, picketing, and parading constitute methods of
expression, entitled to First Amendment protection.).
In this case, some of the Plaintiffs seek to assemble relative to their campaigns for public
office. This type of gathering is unquestionably expressive in nature and, therefore, neatly fits
into the practice of looking at right of assembly challenges through the lens for free speech
jurisprudence. This is the approach taken by the Eastern District of Kentucky in a recent case
challenging COVID-19 congregate limits. Ramsek v. Beshear,__¥. Supp.3d__, 2020) WL
3446249 (E.D. Ky. Jun. 24, 2020).
Ramsek, like this case, was a challenge to the congregate limits imposed by the governor
of Kentucky as applied to protests. Specifically, the plaintiffs argued that the limits violated
their right to gather to protest elements of the governor’s COVID-19 mitigation strategy. The
Ramsek court explained that content-based time, place and manner restrictions on speech and
gatherings are subject to strict scrutiny. Jd at *7. “A content-based restriction on speech is one
that singles out a specific subject matter for differential treatment.” Jd. (citing Reed v. Town of

The congregate limits in question applied to “any event or convening that brings together
groups of individuals, including, but not limited to, community, civic, public, leisure, faith-
based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar
activities.” Ramsek, at *8. The Order was subsequently amended to permit faith-based
gatherings. Jd. at *8 n.8.
26

Gilbert, Ariz., 576 U.S. 155, 157 (2015)). Content-neutral time, place and manner restrictions,
on the other hand, are afforded intermediate scrutiny. Jd. (citing Perry v. Educ. Ass’n v. Perry
Local Educator’s Ass’n., 460 U.S. 37, 46 (1983)) (content-neutral time, place and manner
restrictions on speech are permissible to the extent that they are “narrowly tailored to serve a
significant government interest, and leave open ample alternative channels of communication.”).
The Ramsek court ultimately decided to apply intermediate scrutiny—holding that the
congregate restrictions were content-neutral because they applied to all gatherings for the
purpose of speech, protest, and other expressive gathering. Jd at 9. In doing so, the Ramsek
court rejected the argument that the restrictions were not content-neutral because people are
permitted to gather in, for example, retail establishments, airports, and bus stations. It held that
those activities were not apt comparisons because they do not constitute expressive conduct. Jd.
(citing Dallas v. Stanglin, 490 U.S. 19 (1989)).
The Court questions whether the Ramsek court, perhaps, conflated viewpoint neutrality
and content neutrality or over-weighed the need for expression for assembly to fall under the
First Amendment. Moreover, the instant Defendants’ restrictions are more stringent than
traditional time, place and manner restrictions in that they apply to all fora, not just public.
Further, the Court wonders whether—in their breadth, the orders in question implicate the right
of association—as a subbranch of First Amendment assembly jurisprudence. However, because
it is an established trend, if not the rule, to apply speech jurisprudence in assembly cases, the
Court will apply the same approach here.
The question before the Court is whether strict scrutiny or intermediate scrutiny should
apply to Plaintiffs’ challenge to the congregate gathering limits. Following free speech
jurisprudence, Plaintiffs’ challenge what are akin to time, place and manner restrictions. The

27

Court must determine whether the restrictions are content-based or content-neutral. To do so, the
Court must first determine whether the limits ban certain types of expressive gathering (political
and community meetings, gatherings, etc.), while permitting others (protests). To make that
determination the Court must disentangle the language of Defendants’ orders from their
testimony. Sarah Boateng, the Executive Deputy Secretary of the Pennsylvania Department of
Health, testified that protests are permitted under Defendants’ orders: “the governor and the
secretary did make some public comments about protests and religious services, you know,
saying that they have made those limited exceptions for those constitutionally protected
speech, such as protests, and the individuals had the right to protest and demonstrate.” (ECF
No. 75, p. 176) (emphasis added). She was unable to specifically identify any specific statement
or instrument amending the actual language of the orders. Having reviewed the record, the Court
does not believe that the orders do, in fact, make allowance for protests. Their plain language
makes no mention of protests and makes no distinction between expressive and other gatherings.
The Court does not doubt Ms. Boateng’s position, that the Governor and Secretary have made
comments seemingly permitting protests or justifying the Governor’s personal participation in
them, but even under their broad emergency powers, Defendants cannot govern by comment.
Rather, they are bound by the language of their orders. Those orders make no allowance for
protests. As such, the orders apply to all expressive gatherings, across the board. To that end,
they are content-neutral.
As in Ramsek, Plaintiffs make much of the fact that certain gatherings are limited by a
specific quota, while people are free to congregate in stores and similar businesses based on a
percentage of the occupancy limit. Does permitting people to gather for retail, dining, or other
purposes based only upon a percentage of facility occupancy, while setting hard-and-fast caps on

28

other gatherings, constitute content-based restrictions? The Supreme Court has explained that
“the principle inquiry in determining content neutrality, in speech cases generally and in time,
place, or manner cases in particular, is whether the government has adopted a regulation of
speech because of disagreement with the message it conveys.” Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989). “A regulation that serves purposes unrelated to the content of
expression is deemed neutral, even if it has an incidental effect on some speakers or messages
but not others.” Jd. Based on that definition, Defendants’ orders are content-neutral. Limiting
people by number for the gatherings specified in the orders, while permitting commercial
gatherings based only on occupancy percentage, is not content-based in that it has nothing to do
with the “message” of any expressive behavior. See Ramsek at *9 (citing Dallas, 490 U.S. at 25)
(“Unlike an individual protesting on the Capitol lawn, one who is grocery shopping or traveling
is not, by that action, engaging in protected speech.”). Because the restrictions are content-
neutral, Defendants’ orders will be reviewed with intermediate scrutiny.
b) The congregate gathering restrictions fail intermediate scrutiny.
Under First Amendment jurisprudence, a non-content-based restriction is not subjected to
strict scrutiny, but still must be “narrowly tailored to serve a significant government interest and
leave open ample alternative channels of communication.” Perry, 460 U.S. at 45. Here, the
Court credits the fact that Defendants’ actions were undertaken in support of a significant
government interest—managing the effects of the COVID-19 pandemic in the Commonwealth.
The congregate limitations fail scrutiny, however, because they are not narrowly tailored.
The Supreme Court explained that “the requirement of narrow tailoring is satisfied ‘so
long as the . . . regulation promotes a substantial government interest that would be achieved less
effectively absent the regulation.”” Ward, 491 U.S. at 799 (quoting United States vy.

29

Albertini, 472 U.S. 675, 689 (1985)) (citing Clark v. Community for Creative Non—Violence, 468
U.S. 288, 297 (1984)). Further, “this standard does not mean that a time, place, or manner
regulation may burden substantially more speech than is necessary to further the government's
legitimate interests. Government may not regulate expression in such a manner that a substantial
portion of the burden on speech does not serve to advance its goals.” Jd. Additionally, “a statute
is narrowly tailored if it targets and eliminates no more than the exact source of the ‘evil’ it seeks
to remedy.” Frisby v. Schultz, 487 U.S. 474, 485 (1988).
Defendants’ congregate limits are not narrowly tailored. Rather, they place. substantially
more burdens on gatherings than needed to achieve their own stated purpose. This is not a mere
supposition of the Court, but rather, is highlighted by Defendants’ own actions. While permitting
commercial gatherings at a percentage of occupancy may not render the restrictions on other
gatherings content-based, they do highlight the lack of narrow tailoring. See Ramsek, at *10
(“retail stores, airports, churches and the like serve as an inconvenient example of how the Mass
Gatherings Order fails at narrow tailoring.”). Indeed, hundreds of people may congregate in
stores, malls, large restaurants and other businesses based only on the occupancy limit of the
building. Up to 20,000 people may attend the gathering in Carlisle (almost 100 times the
approved outdoor limit!)—with Defendants’ blessing. Ostensibly, the occupancy restriction
limits in Defendants’ orders for those commercial purposes operate to the same end as the
congregate gathering limits—to combat the spread of COVID-19. However, they do so in a
manner that is far less restrictive of the First Amendment right of assembly than the orders
permit for activities that are more traditionally covered within the ambit of the Amendment—
political, social, cultural, educational and other expressive gatherings.

30

Moreover, the record in this case failed to establish any evidence that the specific
numeric congregate limits were necessary to achieve Defendants’ ends, much less that “[they]
target and eliminate no more than the exact source of the ‘evil’ [they] seek to remedy.” Frisby
A487 U.S.at 485. Mr. Robinson testified that the congregate limits were designed to prevent
“mega-spreading events.” (ECF No. 75, p. 56). However, when asked whether, for example, the
large protests—often featuring numbers far in excess of the outdoor limit and without social
distancing or masks—led to any known mega-spreading event, he was unable to point to a single
mega-spreading instance. (ECF No. 75, p. 155) (“I am not aware specifically. I have not seen
any sort of press coverage or, you know, CDC information about that. I have not seen
information linking a spread to protests.”).
Further, the limitations are not narrowly tailored in that they do not address the specific
experience of the virus across the Commonwealth. Because all of Pennsylvania’s counties are
currently in the “green phase,” the same restrictions apply to all. Pennsylvania has nearly
fourteen million residents across sixty-seven counties. Pennsylvania has dense urban areas,
commuter communities servicing the New York metropolitan area, small towns and vast
expanses of rural communities. The virus’s prevalence varies greatly over the vast diversity of
the Commonwealth—as do the resources of the various regions to combat a population
proportionate outbreak. Despite this diversity, Defendants’ orders take a one-size fits all
approach. The same limits apply in counties with a history of hundreds or thousands of cases as
those with only a handful. The statewide approach is broadly, rather than narrowly, tailored.
The imposition of a cap on the number of people that may gather for political, social,
cultural, educational and other expressive gatherings, while permitting a larger number for
commercial gatherings limited only by a percentage of the occupancy capacity of the facility is

31

not narrowly tailored and does not pass constitutional muster. Moreover, it creates a topsy-turvy
world where Plaintiffs are more restricted in areas traditionally protected by the First
Amendment than in areas which usually receive far less, if any, protection. This inconsistency
has been aptly noted in other COVID-19 cases. As recognized by the court in Ramsek, “it is the
right to protest—through the freedom of speech and freedom of assembly clauses—that is
constitutionally protected, not the right to dine out, work in an office setting, or attend an
auction.” Jd. at *10. In an analogous situation examining restrictions on religious practice,
while permitting retail operations, a court aptly observed that “[i]f social distancing is good
enough for Home Depot and Kroger, it is good enough for in-person religious services which,
unlike the foregoing, benefit from constitutional protection.” Tabernacle Baptist Church, Inc. v.
Beshear, _¥F. Supp. 3d__, 2020 WL 2305307, at *5 (E.D. Ky. May 8, 2020). The same applies
here. The congregate limits in Defendants’ orders are unconstitutional.
3) Defendants’ orders violated Plaintiffs’ rights to substantive due process
under the Fourteenth Amendment.
Plaintiffs assert that the components of Defendants’ orders closing “non-life-sustaining”
businesses and imposing a lockdown violated their liberties guaranteed by the Due Process
Clause of the Fourteenth Amendment. Substantive due process is not an independent right, but
rather, a recognition that the government may not infringe upon certain freedoms enjoyed by the
people as a component of a system of ordered liberty. Here, Plaintiffs assert two grounds
whereby Defendants’ orders violated substantive due process—in the imposition of a lockdown
and in their closure of all businesses that they deemed to be “non-life-sustaining.” While both
issues fall under the general ambit of substantive due process, they implicate different underlying
rights. As such, the Court will address Plaintiffs’ substantive due process claims in two stages,
first examining whether the component of Defendants’ orders imposing a lockdown passes

32

constitutional muster and, then, proceeding to an examination of the business shutdown
component.
a) The stay-at-home provisions.
Governor Wolf issued the first stay-at-home Order on March 23, 2020, mandating in
relevant part:
All individuals residing in the Commonwealth are ordered to stay-at-home except
as needed to access, support or provide life sustaining business, emergency, or
government services. For employees of life sustaining businesses that remain
open, the following child care services may remain open: group and family child
care providers in a residence; child care facilities operating under a waiver
granted by the Department of Human Services Office of Child Development and
Early Learning; and part-day school age programs operating under an exemption
from the March 19, 2020, business closure Orders.
A list of life sustaining businesses that remain open is attached to and
incorporated into this Order. In addition, businesses that are permitted to remain
open include those granted exemptions prior to or following the issuance of this
Order.
Individuals leaving their home or place of residence to access, support, or provide
life sustaining services for themselves, another person, or a pet must employ
social distancing practices as defined by the Centers for Disease Control and
Prevention. Individuals are permitted to engage in outdoor activities; however,
gatherings of individuals outside of the home are generally prohibited except as
may be required to access, support or provide life sustaining services as outlined
above.
(ECF No. 42-15). On April 1, 2020, the Order was later extended to all counties in the
Commonwealth. (ECF 42-30). Although the initial stay-at-home Order had an expiration date
of two weeks, it was amended by subsequent orders to extend to later dates. (ECF Nos. 42-48,
42-50). Ultimately, upon the moving of specified counties, and later all counties, into the “green
phase,” the stay-at-home requirements were “suspended.” The suspension is not a rescission, in
that Defendants may reinstate the stay-at-home requirements, sua sponte, at any time. Finally,
the currently applicable orders, which maintain the stay-at-home provisions, albeit in suspension

33

of operation, have no end date, applying “until further notice.” (ECF Nos. 42-58, 42-59, 42-65
through 42-75, 48-5).
Plaintiffs argue that the lockdowns effectuated by the stay-at-home orders violate their
substantive due process rights secured by the Fourteenth Amendment. They contend that the
orders do not impose traditional disease control measures, such as quarantine or isolation, but
rather involuntarily, and without due process, confine the entire population of the
Commonwealth to their homes absent a specifically approved purpose. Plaintiffs contend that
the lockdown violated their fundamental right to intrastate travel and their freedom of movement.
Plaintiffs further argue that, while the power to involuntarily confine individuals is generally
strictly limited by law, Defendants’ lockdown was overbroad and far exceeded legitimate
government need and authority. They conclude that even compelling state interests “cannot be
pursued by means that broadly stifle fundamental personal liberties when the end can be more
narrowly achieved.” (ECF No. 56, p. 14) (citing Shelton v. Tucker, 364 U.S. 479, 488 (1960)).
Defendants first argue that the suspension of the stay-at-home orders render their
consideration in this case moot. Moreover, Defendants argue that the stay-at-home orders were
not actually orders at all, but merely recommendations.'® On a substantive basis, they argue that
the stay-at-home orders survive constitutional scrutiny because they do not shock the conscience.
(ECF No. 66, p. 12 et seg. (“The Business Plaintiffs . . . have not established a violation of a
fundamental liberty interest and the Business Closure Orders and stay-at-home orders do not
shock the conscience.”)). They contend that “the touchstone of due process is protection of the

'6 The Court rejects out-of-hand any suggestion that the stay-at-home provisions of Defendants’
orders were merely recommendations. The plain language of the orders shows that these
provisions were mandates. Further, the record contains evidence of citations issued to
Pennsylvania residents for violating the orders.

34

individual against arbitrary action of government” and that “only the most egregious official
conduct can be said to be arbitrary in the constitutional sense.” (ECF No. 66, p. 16) (citing
County of Sacramento v. Lewis, 523 U.S. 833, 845 (1988)). Essentially, Defendants argue that
both the stay-at-home orders and the business closure orders were a legitimate exercise of their
emergency authority in “very quickly responding to a public health emergency, a pandemic, the
likes of which had . . . never been seen in the Commonwealth or nationally, internationally, in
100 years... .” (ECF No. 66, p. 17) (quoting ECF No. 75, p. 26)).
In examining this issue, the Court was faced with three major questions—1) whether it
can, and/or should, consider the constitutionality of the suspended stay-at-home provisions; if so;
2) what a lockdown is, from a legal and constitutional perspective and what type of constitutional
analysis should be applied; and finally 3) whether a lockdown is constitutional.
i. The Court may, and should, consider Plaintiffs’
arguments about the stay-at-home provisions.
Defendants argue that the question of whether the stay-at-home provisions of orders are
unconstitutional is moot.'’ According to Defendants, stay-at-home orders have been suspended
in operation. As such, the citizens of the Commonwealth are free to leave their homes for any
purpose. Likewise, Defendants contend that their reopening plan has permitted nearly all
businesses to reopen, has eliminated the distinction between “life-sustaining” and “non-life-
sustaining” businesses, and have only imposed certain operational restrictions on ongoing
operations. Plaintiffs counter that the issues remain ripe for review because, according to
language of the orders, the earlier, more restrictive, provisions are merely suspended, rather than

'7 There is no question that the ongoing restrictions on gatherings are ripe for review. The
mootness question is directed at issues surrounding the suspended “stay-at-home’ orders and the
substantially amended business closure orders.
35

rescinded and Defendants retain the authority to reimpose any and all restrictions sua sponte and
at any time.
The doctrine of mootness is rooted in Article III of the Constitution, which gives federal
courts jurisdiction over “cases” and “controversies.” Federal courts can only entertain actions if
they present live disputes. Summers v. Earth Island Inst., 555 U.S. 488, 492-94 (2009). The
plaintiff in a federal action has the initial burden of showing a ripe dispute, but the burden will
shift if a defendant asserts that some development has mooted elements of the plaintiff's claim.
Hartnett v. Pa. State Educ. Ass’n, 963 F.3d 301, 305 (Gd. Cir. 2020). “If the defendant...
claims that some development has mooted the case, it bears the heavy burden of persuading the
court that there is no longer a live controversy.” Jd. at 305-06 (citing Friends of the Earth, Inc. v.
Laidlaw Environmental Services (TOC) Inc., 528 U.S. 167, 189 (2000)). Although a change in
circumstance may render a case moot, it will not always do so. “So, sometimes a suit filed on
Monday will be able to proceed even if, because of a development on Tuesday, the suit would
have been dismissed for lack of standing if it had been filed on Wednesday. The Tuesday
development does not necessarily moot the suit.” Hartnett, 963 F.3d at 306.
The “voluntary cessation” doctrine may serve as an exception to mootness. Friends of
the Earth, 528 U.S. at 189 (“It is well settled that a defendant’s voluntary cessation of a
challenged practice does not deprive a federal court of its power to determine the legality of the
practice.”) (citation omitted). As the Third Circuit explained,
[o]ne scenario in which we are reluctant to declare a case moot is when the
defendant argues mootness because of some action it took unilaterally after the
litigation began. This situation is often called “voluntary cessation,” and it “will
moot a case only if it is ‘absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur.’”

36

Hartnett, 963 F.3d at 306 (citations omitted). Thus, “[w]hen a plaintiff seeks declaratory relief, a
defendant arguing mootness must show that there is no reasonable likelihood that a declaratory
judgment would affect the parties’ future conduct.” Jd. (emphasis added).
Federal courts have applied the voluntary cessation doctrine in COVID-19 litigation to
examine issues in governors’ mitigation orders that were, seemingly, rendered moot by
subsequent amendments to the orders. In Elim Romanian Pentecostal Church et al. v. Pritzker,
962 F.3d 341 (7th Cir. 2020), the plaintiffs challenged an order of the governor of Illinois
restricting in-person religious services. After the case was filed, the governor replaced the
original order with one lifting the restrictions (at least as to religious organizations). The
Seventh Circuit Court of Appeals rejected the argument that the superseding order rendered moot
the question of whether the revoked order violated the First Amendment. It observed that the
governor could move back to the more restrictive measures at will and that the new order
specifically reserved the right to do so. As such, the voluntary cessation doctrine precluded
finding that the constitutional issues posed by the initial order were moot. Elim Romanian, 962
F.3d at 344-45.
In Acosta v. Wolf, 2020 WL 3542329 (E.D. Pa. June 30, 2020), the plaintiff challenged
elements of Governor Wolf’s emergency orders arguing, infer alia, that they hindered his ability
to obtain the requisite number of signatures needed to appear on the ballot for United States
Congress and seek an order placing him on the ballot. The district court rejected the argument
that the promulgation of other, less restrictive orders rendered moot the claims. It stated:
The “alleged violation” alleged today is the Governor’s enforcement of the
Commonwealth’s signature requirement in light of the executive emergency
orders to mitigate the COVID-19 pandemic. But even though the executive
emergency orders cease on Saturday, June 5, there is still a “reasonable
expectation” the Governor could reinstate the executive emergency orders or issue
similar restrictive measures before the November 2020 election.

37

Acosta, at *2 n.7. The district court, therefore, proceeded to examine the plaintiff's complaint,
but ultimately found that it failed to state claim upon which relief could be granted and was
frivolous.
Here, the application of the voluntary cessation doctrine precludes a determination that
the loosening of restrictions in subsequent orders renders moot Plaintiffs’ constitutional
challenges to elements of Defendants’ March 19, 2020 Business Closure Orders and the March
23, 2020 Stay-at-Home Orders. The language of all subsequent orders merely amends the
operation of those orders. It does not completely abrogate them. They remain in place,
incorporated into the existing orders and are only “suspended.”!8 Mr. Robinson specifically
testified:
Q. As we sit here today, is there a stay-at-home order in place?
A. There is—there is a stay-at-home order in place, but it has been modified by
the subsequent orders that have been put out.
(ECF No. 75, p. 144). He testified, regarding both the stay-at-home and the business closure
provisions of Defendants’ orders that “it is possible that some of these [provisions] could be
reinstated.” (ECF No. 75, p. 38). The language of the orders and the explanation offered by
Defendants’ witnesses makes clear that the people of the Commonwealth remain subject to a
stay-at-home order. Although that order is suspended in operation, it remains incorporated into
the most recent mitigation orders issued by Defendants and can, at their will, be reinstated to full

8 Q. So in the green phase, which all of Pennsylvania is in today—in the green phase
here is not an elimination of the stay-at-home order but, rather, a suspension of the stay-at-home
order; is that correct?
A. That is correct.
(ECF No. 75, pp. 36-37).
38

effect. There is no question that under the voluntary cessation doctrine the Court can examine
the issue, which remains fully ripe for review.
The Court is cognizant that the voluntary cessation doctrine may create some tension
with a principle of judicial restraint—that courts should generally, when possible, avoid
constitutional issues. However, courts have a duty to fully examine and address issues
legitimately brought to them by the parties and failure to do so in the name of restraint may very
well constitute a dereliction of duty. See Citizens United v. FEC, 558 U.S. 310, 329 (2010) (“It
is not judicial restraint to accept an unsound, narrow argument just so the Court can avoid
another argument with broader implications. Indeed, a court would be remiss in performing its
duties were it to accept an unsound principle merely to avoid the necessity of making a broader
ruling.”).
Here, the Court cannot, consistent with its most fundamental duties, avoid addressing the
issues raised by Plaintiffs relating to the stay-at-home orders. The record is unequivocal that
those orders, albeit suspended, remain in place. In other words, all of Plaintiffs and, indeed, all
of the citizens of the Commonwealth continue to be subject to stay-at-home orders that can be
reinstated at the will of Defendants. Moreover, the specter of future, reinstated lockdowns
remains a concern for Plaintiffs and continues to hang over the public consciousness. The Court
is compelled, therefore, to address whether such lockdowns comply with the United States
Constitution.

39

ii. Broad population lockdowns are unprecedented in
American law.
To determine whether Defendants’ stay-at-home orders are constitutional the Court must,
as in all cases, determine which level of scrutiny should apply. To do so, the Court has to
determine what a population lockdown, the effect of the stay-at-home orders, is from a legal
perspective. This is not necessarily an easy task. Although this nation has faced many
epidemics and pandemics and state and local governments have employed a variety of
interventions in response, there have never previously been lockdowns of entire populations—
much less for lengthy and indefinite periods of time.
One term that has frequently been employed to describe the lockdowns is “quarantine.”
Quarantines have been used throughout history to slow the spread of infectious diseases by
isolating the infected and others exposed to the disease. Statutes enabling quarantine in times of
disease date to colonial times. See Laura K. Donohue, Biodefense and Constitutional
Constraints, 4 U. MIAMI NAT’L SEc. & ARMED CONFLICT L. REv. 82, 94 (2013-2014).
Pennsylvania employed quarantine provisions from the time of William Penn—mainly directed
at passengers and cargo from incoming ships. Jd. at 104-106.” Following independence, the
states, including Pennsylvania, continued to maintain and, when necessary, employ quarantine
powers. Those powers are currently set forth in the Pennsylvania Disease Prevention and
Control Law of 1955. The statute empowers the state board of health to issue rules and
regulations regarding quarantine and for the state, as well as local boards or departments of

19 Interestingly, William Penn ensured that Pennsylvania’s use of quarantine was less severe than
he had witnessed in London where, he observed, the effects of quarantine were
disproportionately harmful to the poor. Jd. at 104-06, (quoting CATHERINE UWENS PEARE,
WILLIAM PENN: A BIOGRAPHY, 48-51 (1957)) (“[In London] Families with plague cases were
boarded up into their houses for forty days without sufficient resources. Door upon door bore
the great placard with its red cross and the plea, ‘Lord have mercy upon us!””).
40

health, to impose a quarantine, when necessary. 35 P.S. 521.3, 521.5, 521.16. The statute
defines “quarantine” as:
Quarantine. The limitation of freedom of movement of persons or animals who
have been exposed to a communicable disease for a period of time equal to the
longest usual incubation period of the disease in such manner as to prevent
effective contact with those not so exposed. Quarantine may be complete, or, as
defined below, it may be modified, or it may consist merely of surveillance or
segregation.
(1) Modified quarantine is a selected, partial limitation of freedom of movement,
determined on the basis of differences in susceptibility or danger of disease
transmission, which is designed to meet particular situations. Modified
quarantine includes, but is not limited to, the exclusion of children from
school and the prohibition or the restriction of those exposed to a
communicable disease from engaging in particular occupations.
(2) Surveillance is the close supervision of persons and animals exposed to a
communicable disease without restricting their movement.
(3) Segregation is the separation for special control or observation of one or more
persons or animals from other persons or animals to facilitate the control of a
communicable disease.
35 P.S. 521.2.
The plain language of the statute makes clear that the lockdown effectuated by the stay-
at-home orders is not a quarantine. A quarantine requires, as a threshold matter, that the person
subject to the “limitation of freedom of movement” be “exposed to a communicable disease.”
Id. Moreover, critically, the duration of a quarantine is statutorily limited to “a period of time
equal to the longest usual incubation period of the disease.” The lockdown plainly exceeded that
period. Indeed, Defendants’ witnesses, particularly Ms. Boateng, conceded upon examination
that the lockdown cannot be considered a quarantine. (ECF No. 75, p. 209) (Q: “And you agree
with me that the governor’s order and the secretary’s stay-at-home orders are not isolation orders

4]

and are not quarantine orders?” A: “I would agree with that.”). Rather, Defendants simply
classify the order as “public health mitigation.” (ECF No. 75, p. 209).”°
Defendants attempt to justify their extraordinary “mitigation” efforts by pointing to
actions taken to combat the Spanish Flu pandemic a century ago. Ms. Boateng testified that, in
response to the Spanish Flu, “much of the same mitigation steps were taken then, the closing of
bars, saloons, cancellation of vaudeville shows, as they called them, and cabarets, the prohibition
of large events. So some of these same actions that we’re taking now had been taken in the
past.” (ECF No. 75, pp. 203-04). But an examination of the history of mitigation efforts in
response to the Spanish Flu—by far the deadliest pandemic in American history—reveals that
nothing remotely approximating lockdowns were imposed.
Records show that on October 4, 1918, Pennsylvania Health Commissioner B. Franklin
Royer imposed an order which closed “all public places of entertainment, including theaters,
moving picture establishments, saloons and dance halls and prohibit[ed] all meetings of every

20 Rven if the lockdown effectuated by the stay-at-home order could be classified as a quarantine,
it would nevertheless far exceed the traditional understanding of a state’s quarantine power.
State quarantine power, “although broad, is subject to significant constitutional restraints.”
Wendy E. Parmet, Quarantining the Law of Quarantine: Why Quarantine Law Does Not Reflect
Contemporary Constitutional Law, 9 WAKE Forest J.L. & PoL’y 1, 4 (2018). The power to
subject a citizen to quarantine is subject to both procedural and substantive due process
restraints. “At a minimum, these include the requirement that quarantine be imposed only when
it is necessary for public health (or is the least-restrictive alternative) and only when it is
accompanied by procedural due process protections, including notice, the right to a hearing
before an independent decision-maker either before or shortly after confinement, the right to
counsel, and the requirement that the state prove its case with clear and convincing evidence.”
Id. at 4 (internal citations omitted). Defendants’ stay-at-home orders imposed a statewide
lockdown on every resident of the Commonwealth that included none of these basic
constitutional safeguards.

42

description until further notice.””’ The order left to local officials the decision on whether to
cancel school and/or religious services. The restrictions were lifted on November 9, 1918.7 A
comparative study of nonpharmaceutical interventions used in various U.S. cities in 1918-19
shows that state and local mitigation measures were of similarly short durations across the
nation.”? While, unquestionably, states and local governments restricted certain activities for a
limited period of time to mitigate the Spanish Flu, there is no record of any imposition of a
population lockdown in response to that disease or any other in our history.”
Not only are lockdowns like the one imposed by Defendants’ stay-at-home orders
unknown in response to any previous pandemic or epidemic, they are not as much as mentioned
in recent guidance offered by the Centers for Disease Control and Prevention (“CDC”). For
example, the Community Mitigation Guidelines to Prevent Pandemic Influenza—United States,
2017 offers guidelines “to help state, tribal, local, and territorial health departments with pre-

21 Sweeping Order Issued by State Health Director, PITTSBURGH Post, Oct. 4, 1918, at 1,
https://newscomwc.newspapers.com/image/8769241 1;
https://newscomwe.newspapers.com/image/14397438.
22 See Edwin Kiester Jr., Drowning in their Own Blood, PITTMED, Jan. 2003, at 23,
https://www.pittmed.health.pitt.edu/Jan_2003/PITTMED_Jan03.pdf.
23 Howard Markel et al., Nonpharmaceutical Interventions Implemented by US Cities During the
1918-1919 Influenza Pandemic, 298 JAMA 644, 647 (2007). The total duration of
nonpharmaceutical interventions imposed by state and local mandate for Philadelphia and
Pittsburgh were 51 and 53 days, respectively. Id. at 647, Table 1. This length was, generally,
representative of the duration of interventions in most cities. Jd. Seattle had the longest period
of restrictions, nationwide, at 168 days from start to finish.
24 See also Greg Ip, New Thinking on Covid Lockdowns: They’re Overly Blunt and Costly, WALL
St. Aug. 24, 2020 (“Prior to Covid-19, lockdowns weren’t part of the standard epidemic tool
kit, which was primarily designed with flu in mind. During the 1918-1919 flu pandemic, some
American cities closed schools, churches and theaters, banned large gatherings and funerals and
restricted store hours. But none imposed stay-at-home orders or closed all nonessential
businesses. No such measures were imposed during the 1957 flu pandemic, the next-deadliest
one; even schools stayed open.”’).

43

pandemic planning and decision-making by providing updated recommendations on the use of
NPIs [non-pharmaceutical interventions].”*° It recommends an array of personal protective
measures (i.e. staying home when sick, hand hygiene and routine cleaning) and community level
NPI measures that may be taken by state and local authorities. Jd at 2. The community level
interventions include “temporary school closures and dismissals, social distancing in workplaces
and the community, and cancellation of mass gatherings.” Jd. There are no recommendations in
the document that even approximate the imposition of statewide (or even community wide) stay-
at-home orders or the closure of all “non-life-sustaining” businesses. Indeed, even for a “Very
High Severity” pandemic (defined as one comparable to the Spanish Flu), the guidelines provide
only that “CDC recommends voluntary home isolation of ill persons,” and “CDC might
recommend voluntary home quarantine of exposed household members in areas where novel
influenza circulates.” Jd at 32, Table 10 (emphasis added). This is a far, far cry from a
statewide lockdown such as the one imposed by Defendants’ stay-at-home orders.
The fact is that the lockdowns imposed across the United States in early 2020 in response
to the COVID-19 pandemic are unprecedented in the history of our Commonwealth and our
Country. They have never been used in response to any other disease in our history. They were
not recommendations made by the CDC. They were unheard of by the people this nation until
just this year. It appears as though the imposition of lockdowns in Wuhan and other areas of
China—a nation unconstrained by concern for civil liberties and constitutional norms—started a
domino effect where one country, and state, after another imposed draconian and hitherto untried
measures on their citizens. The lockdowns are, therefore, truly unprecedented from a legal
perspective. But just because something is novel does not mean that it is unconstitutional. The

*5 Noreen Qualls et al., Community Mitigation Guidelines to Prevent Pandemic Influenza—
United States, 2017 2 (Sonja A. Rasmussen et al. eds., 2017).
44

Court will next attempt to apply established constitutional principles to examine this unfamiliar
situation.
iii. The stay-at-home provisions of Defendants’ orders are
unconstitutional.
Plaintiffs argue that the lockdown implemented by the stay-at-home provisions of
Defendants’ orders violated the substantive due process guarantees of the Fourteenth
Amendment. Specifically, they contend that it infringes upon the right to intrastate travel that
has been suggested by precedent of the Supreme Court*® and specifically adopted by the Third
Circuit in Lutz v. City of York, 899 F.2d 255 (d Cir. 1990). In Lutz, the Third Circuit examined
a municipal ordinance regulating car cruising and unequivocally held that “the right to move
freely about one’s neighborhood or town, even by automobile, is indeed, ‘implicit in the concept
of ordered liberty’ and ‘deeply rooted in the Nation’s history.’” Jd. at 268.
The Third Circuit considered what level of scrutiny should be applied to the right to
intrastate travel and rejected the argument that strict, rather than intermediate scrutiny should
apply:
Not every governmental burden on fundamental rights must survive strict
scrutiny, however. We believe that reviewing all infringements on the right to
travel under strict scrutiny is just as inappropriate as applying no heightened
scrutiny to any infringement on the right to travel not implicating the structural or
federalism-based concerns of the more well-established precedents.
Id. at 269. By applying intermediate scrutiny, it allowed for the right to travel, like speech, to be
subject to reasonable time, place and manner restrictions. Jd.

26 Williams v. Fears, 179 U.S. 270, 274 (1900) (“Undoubtedly the right of locomotion, the right
to remove from one place to another according to inclination, is an attribute of personal liberty,
and the right, ordinarily, of free transit from or through the territory of any state is a right secured
by the 14th Amendment and by other provisions of the Constitution.”).
45

The Court wonders whether the lockdown effectuated by the stay-at-home provisions of
Defendants’ orders are of such a different character than the municipal car cruising ordinance as
would warrant the imposition of strict scrutiny. There is no question that requiring all citizens of
the Commonwealth to stay-at-home unless they have a reason to go out approved by Defendants’
orders is a far greater burden on personal autonomy than the situation in Lutz. In that case, the
drivers were not precluded from leaving home and driving around town, but they were merely
restricted from certain practices at certain times, not unlike many other traffic control policies.
Herein, the stay-at-home orders strictly limited the right of movement, confining citizens to their
homes unless they had a specific permissible reason to leave enumerated in Defendants’ orders.
Thus, the stay-at-home orders impacted liberties not merely limited to the act of traveling, but
the very liberty interests arising from the fruits of travel, such as the right of association and even
the right to privacy—i.e., the right simply to be left alone while otherwise acting in a lawful
manner. Our Courts have long recognized that beyond the right of travel, there is a fundamental
right to simply be out and about in public. City of Chicago v. Morale, 527 U.S. 41, 53-54 (1999)
(striking down an antiloitering ordinance aimed at combatting street gangs and observing that
“the freedom to loiter for innocent purposes is part of the ‘liberty’ protected by the Due Process
Clause of the Fourteenth Amendment.”). See also Papachristou v. Jacksonville, 405 U.S. 156,
164-65 (1972) (citing a Walt Whitman poem in extolling the fundamental right to loiter, wander,
walk or saunter about the community); Bykofsly v. Borough of Middletown, 429 U.S. 964 (1976)
(Marshall, J., dissenting) (“The freedom to leave one’s house and move about at will is of the
very essence of a scheme of ordered liberty, . . . and hence is protected against state intrusions by
the Due Process Clause of the Fourteenth Amendment.’) (internal citation and quotation marks
omitted)); Waters v. Barry, 711 F. Supp. 1125, 1134 (D.D.C. 1989) (referencing Papachristou

46

and stating “[t]he right to walk the streets, or to meet publicly with one’s friends for a noble
purpose or for no purpose at all—and to do so whenever one pleases—is an integral component
of life in a free and ordered society.”).
While the Third Circuit applied intermediate level scrutiny to the limited time, place and
manner restrictions on the right to intrastate travel imposed by the ordinance at issue, there are
substantial grounds to hold that strict scrutiny should apply to the stay-at-home provisions of
Defendants’ orders. The intrusions into the fundamental liberties of the people of this
Commonwealth effectuated by these orders are of an order of magnitude greater than any of the
ordinances examined in right to travel cases, loitering and vagrancy cases or even curfew cases.
Defendants’ stay-at-home and business closure orders subjected every Pennsylvanian to a
lockdown where he or she was involuntarily committed to stay-at-home unless he or she was
going about an activity approved as an exception by the orders. This is, quite simply,
unprecedented in the American constitutional experience.
The orders are such an inversion of the usual American experience that the Court believes
that no less than the highest scrutiny should be used. However, the Court holds that the stay-at-
home orders would even fail scrutiny under the lesser intermediate scrutiny used by the Third
Circuit in Lutz. A critical element of intermediate scrutiny is that the challenged law be narrowly
tailored so that it does “not burden more conduct than is reasonably necessary.” Assoc. of New
Jersey Rifle and Pistol Clubs, Inc. v. Attorney General New Jersey, 910 F.3d 106, 119 (3d. Cir.
2018). The stay-at-home orders far exceeded any reasonable claim to be narrowly tailored.
Defendants’ orders subjected every Pennsylvanian to a lockdown where he or she was
involuntarily committed to stay-at-home unless he or she was going about an activity approved
as an exception by the orders. Even in the most recent, and currently applicable, iteration of

AT

Defendants’ orders, while the operation of the stay-at-home provisions is “suspended,” it is not
rescinded and may be re-imposed at any time at the sole discretion of Defendants. Thus,
Defendants’ orders have created a situation where the default position is lockdown unless
suspended at their will. When in place, the stay-at-home order requires a default of confinement
at home, unless the citizen is out for a purpose approved by Defendants’ orders. Moreover, this
situation applied for an indefinite period of time. This broad restructuring of the default concept
of liberty of movement in a free society eschews any claim to narrow tailoring.
In addition, the lack of narrow tailoring is highlighted by the fact that broad, open-ended
population lockdowns have never been used to combat any other disease. In other words, in
response to every prior epidemic and pandemic (even more serious pandemics, such as the
Spanish Flu) states and local governments have been able to employ other tools that did not
involve locking down their citizens. Although it is the role of the political branches to determine
which tools are suitable to address COVID-19, the 2017 CDC guidance highlights the fact that
governments have access to a full menu of individual and community interventions that are not
as intrusive and burdensome as a lockdown of a state’s population. Finally, the Court observes
that the suspension of the operation of the stay-at-home order highlights that it “burdens more
conduct than is reasonably necessary.” In other words, Defendants are currently using means
that are less burdensome to the rights of a free people.
The Court declares, therefore, that the stay-at-home components of Defendants’ orders
were and are unconstitutional. Broad population-wide lockdowns are such a dramatic inversion
of the concept of liberty in a free society as to be nearly presumptively unconstitutional unless
the government can truly demonstrate that they burden no more liberty than is reasonably □

48

necessary to achieve an important government end. The draconian nature of a lockdown may
render this a high bar, indeed.
b) The business shutdown components of Defendants’ orders
violate the Due Process clause of the Fourteenth Amendment.
The Business Plaintiffs further argue that the business closure orders violated the Due
Process Clause. The Order states, in relevant part: “[n]o person or entity shall operate a place of
business in the Commonwealth that is not a life-sustaining business regardless of whether the
business is open to members of the public.” (ECF No. 42-3, Section 1). The Order attached a
list of “life-sustaining” businesses that were permitted to stay open. Defendants also set up a
waiver system, whereby a business deemed to be “non-life-sustaining” could request permission
to continue operations. (ECF No. 38, p. 2). Defendants decided to close the waiver process on
April 3, 2020, largely because of an overwhelming number of requests. (ECF No. 38, p. 4; ECF
No. 75, pp. 227-31). The record shows that Defendants never had a set definition in writing for
what constituted a “life-sustaining” business. Rather, their view of what was, or was not, “life-
sustaining” remained in flux. (ECF No. 75, pp. 97-98). Finally, the record shows that the
definition of “life-sustaining” continued to change, even after the waiver process closed. The
Business Plaintiffs argue that all of these facts highlight the constitutional infirmity of the
business shutdown.
As with the lockdown, Defendants’ shutdown of all “non-life-sustaining” businesses is
unprecedented in the history of the Commonwealth and, indeed, the nation. While historical
records show that certain economic activities were curtailed in response to the Spanish Flu
pandemic, there has never been an instance where a government or agent thereof has sua sponte
divided every business in the Commonwealth into two camps—“life-sustaining” and “non-life-
sustaining”—and closed all of the businesses deemed “non-life-sustaining” (unless that business

49

obtained a discretionary waiver). The unprecedented nature of the business closure—even in
light of historic emergency situations—makes its examination difficult from a constitutional
perspective. It simply does not neatly fit with any precedent ever addressed by our courts.
Never before has the government exercised such vast and immediate power over every business,
business owner, and employee in the Commonwealth. Never before has the government taken a
direct action which shuttered so many businesses and sidelined so many employees and rendered
their ability to operate, and to work, solely dependent on government discretion. As with the
analysis of lockdowns, the unprecedented nature of the business shutdowns poses a challenge to
its review. Nevertheless, having reviewed this novel issue in light of established Due Process

_ principles, the Court holds that the business closure orders violated the Fourteenth Amendment.
i. The challenges to the business closures remain ripe for
review.
As with the stay-at-home component of Defendants’ orders, the business closure
provisions remain reviewable under the voluntary cessation doctrine. The business closure
orders were never rescinded. Rather, they are merely suspended. Specifically, the May 7, 2020
Order outlining the movement of certain counties from the “red phase” to the “yellow phase”
provides: “[m]y order directing the ‘Closure of All Businesses That are not Life Sustaining’
issued March 19, 2020, as subsequently amended, is suspended for the following counties .. . .”
(ECF No. 42-52, Section 1:A) (emphasis added). The language of the Order makes clear that it
provides no guarantee of permanence in that it states: “[w]hereas, it is necessary to relax some of
the requirements of the aforementioned orders for a period of time as part of a gradual and
strategic return to work.” (ECF No. 42-52) (emphasis added). Following orders moving
counties into the “green phase,” likewise, state that the orders closing “non-life-sustaining”
businesses are “suspended.” (See e.g. ECF No. 42-58, Section 1:A). Mr. Robinson confirmed

50

that the orders remain suspended and “it is possible that some of these provisions could be
reinstated.” (ECF No. 75, p. 38). Thus, Defendants’ orders closing all “non-life-sustaining”
businesses, imposed by them sua sponte, suspended by them sua sponte, and susceptible to sua
sponte re-imposition at any time are appropriately before the Court.
ii. The Fourteenth Amendment guarantees a citizen’s right
to support himself by pursuing a chosen occupation.
The Business Plaintiffs argue that the business shutdown orders violated their right to
substantive due process under the Fourteenth Amendment. Specifically, they contend that the
designation of some businesses—including all of their businesses—as “non-life-sustaining” and
closing them violated their right to “engage in the common occupations of life” and to engage in
the pursuit of his or her “chosen profession free from unreasonable governmental interference.”
(ECF No. 56, p. 7 et seq.) (citing McCool v. City of Philadelphia, 497 F. Supp. 2d 307, 328 (E.D.
Pa. 2007)). Defendants counter that the Fourteenth Amendment does not guarantee “any
fundamental right to earn a living.” (ECF No. 66, p. 15). They argue that Plaintiffs read too
much into precedent that generally references the right of citizens to pursue their chosen
occupations, that mere economic regulation is given little scrutiny and, that Plaintiffs were not
deprived of any protected liberty interest, but rather, just temporarily prevented from operating
their businesses. (ECF No. 66, pp. 14-16). Thus, Defendants argue that Plaintiffs’ substantive
due process claims should be rejected.
The Due Process Clause of the Fourteenth Amendment includes a substantive component
that bars arbitrary, wrongful, government action “regardless of the fairness of the procedures
used to implement them.” Zinermon y. Burch, 494 U.S. 113, 125 (1990). Contrary to
Defendants’ argument, the right of citizens to support themselves by engaging in a chosen
occupation is deeply rooted in our nation’s legal and cultural history and has long been

51

recognized as a component of the liberties protected by the Fourteenth Amendment. Over a
century ago, the Supreme Court recognized that “[ijt requires no argument to show that the right
to work for a living in the common occupations of the community is of the very essence of the
personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to
secure.” Truax v. Raich, 239 U.S. 33, 41 (1915) (holding that a state anti-alien labor statute
violated both equal protection and due process). Later, in striking down a law banning the
teaching of foreign languages in school, the Supreme Court observed that the Fourteenth
Amendment guaranteed the right, inter alia, “to engage in any of the common occupations of life
....” Meyer v. Nebraska, 262 U.S. 390, 399 (1923). The emphasis given to economic
substantive due process reached its apex in the Lochner era, Lochner v. New York, 198 U.S. 45
(1905), and was considerably recalibrated and de-emphasized by the New Deal Supreme Court
and later jurisprudence. Nevertheless, our Supreme Court has never repudiated the recognition
that a citizen has the right to work for a living and pursue his or her chosen occupation.
The Third Circuit has recognized “[t]he right to hold specific private employment and to
follow a chosen profession free from unreasonable governmental interference comes within both
the ‘liberty’ and the ‘property’ concepts of the Fifth and Fourteenth Amendments.” Piecknick v.
Comm. of Pa., 36 F.3d 1250, 1259 (3d. Cir. 1994) (citing Green v. McElroy, 360 U.S. 474, 492
(1959); Truax, 239 U.S. at 41). However,
[t]he Constitution only protects this liberty from state actions that threaten to
deprive persons of the right to pursue their chosen occupation. State actions that
exclude a person from one particular job are not actionable in suits . . . brought
directly under the due process clause. It is the liberty to pursue a calling or
occupation, and not the right to a specific job, that is secured by the Fourteenth
Amendment.
Id. (internal citations and quotation marks omitted). There is no question, then, that the
Fourteenth Amendment recognizes a liberty interest in citizens—the Business Plaintiffs here—to

52

pursue their chosen occupation. The dispositive question is not whether such a right exists, but
rather, the level of infringement upon the right that may be tolerated.
Although federal courts have recognized the existence of a substantive due process right
of a citizen to pursue a chosen occupation for over a century, there is little specific analysis on
how that right should be weighed and what sort of test should be applied to allegedly infringing
conduct. As a matter of general consensus, courts generally treat government action purportedly
violating the right to pursue an occupation in the same light as economic legislation and use the
general standard of review applied to substantive due process claims. In reviewing a substantive
due process claim, the “criteria to identify what is fatally arbitrary differ depending on whether it
is legislation or a specific act of a government officer that is at issue.” Cty. of Sacramento v.
Lewis, 523 U.S. 833, 846 (1998). “Specific acts” are also known as “executive acts” in
substantive due process jurisprudence. The Third Circuit has explained that “executive acts,
such as employment decisions, typically apply to one person or to a limited number of persons,
while legislative acts, generally laws and broad executive regulations, apply to large segments of
society.” Nicholas v. Pa. State Uniy., 227 F.3d 133, 139 n.1 (3d. Cir. 2000). Substantive due
process challenges to a legislative act are reviewed under the rational basis test. Am. Exp. Travel
Related Serv’s., Inc. v. Sidamon-Eristoff, 669 F.3d 359, 366 (3d. Cir. 2012).

27 Tn recent years, a growing chorus of cases and commentators have questioned whether the
general deference afforded to economic regulations of the right to pursue one’s occupation
should be reexamined, and that governmental action be subjected to greater scrutiny. See
generally, Rebecca Haw Allensworth, The (Limited) Constitutional Right to Compete in an
Occupation, 60 WM. & Mary L. REv. 1111 (2019); see also Timothy Sandefur, The Right to
Earn a Living, 6 CHAP. L. REV. 207, 208 (2003). The latest focus.on governmental action
impacting the right to earn a living centers upon occupational licensing schemes. Professor
Allensworth observed, “[w]ithin the movement [to reinvigorate protections on the right to pursue
an occupation] there is disagreement about what doctrinal changes are needed to resurrect this
once-vibrant right. Some call for a revision of the rational basis test that would place a heavier
burden on the government to justify economic regulation as ‘rational.’ Others see the rational
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Before proceeding to applicable constitutional scrutiny, the Court will address the fact
that, as Defendants point out, the closures of “non-life-sustaining” businesses was only
temporary. Defendants hold that this precludes a claim that the closures violated the Fourteenth
Amendment. Although the closures were ultimately “suspended” after a period of approximately
two months (for businesses in some counties and longer for businesses in other counties), the
March 19, 2020 Order has no end date. Rather, it is open-ended, remaining “in effect until
further notice.” (ECF No. 42-3). Moreover, even the subsequent orders suspending (not
rescinding) the shutdown of “non-life-sustaining” businesses recognize only that “it is necessary
to relax some of the requirements of the aforementioned orders for a period of time as part of a
gradual and strategic return to work.” (ECF No. 42-52). A total shutdown of a business with no
end-date and with the specter of additional, future shutdowns can cause critical damage to a
business’s ability to survive, to an employee’s ability to support him/herself, and adds a
government-induced cloud of uncertainty to the usual unpredictability of nature and life.
Evidence of record shows that the impact of the shutdown, even though temporary, was
immediate and severe on the Business Plaintiffs. For example, R.W. McDonald & Sons, a small
business, estimates that it “lost approximately $300,000 in revenue[,|” and that its business has
been “financially devastated.” (ECF No. 30, p. 2). R.W. McDonald expressed ongoing concern
that the restrictions may be re-imposed, which could be fatal. Plaintiffs Chris and Jody

basis test as beyond salvation and call for a different tier of review, such as intermediate scrutiny,
for economic rights such as the right to be free from unreasonable licensing laws.” Allensworth,
supra, at 1128. See also Alexandra L. Klein, The Freedom to Pursue a Common Calling:
Applying Intermediate Scrutiny to Occupational Licensing Statutes, 73 WASH. & LEE L. REV.
411 (2016). There is no question that occupational licensing requirements and other, similar,
restrictions on the right to pursue one’s occupation are considerably different than a state-wide
shutdown of all businesses deemed to be “non-life-sustaining.” This is, perhaps, a case where
the level of interference with the citizens’ right to earn a living was so immediate and severe as
to warrant a heightened level of scrutiny.
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Bertoncello- Young explained that the losses to their small salon exceeded $150,000 and that they
depleted their entire emergency fund to pay expenses that came due when their business was
required to remain closed. (ECF No. 32, p. 3). The Bertoncello-Youngs also expressed concern
about re-imposition of the restrictions. (ECF No. 30, p. 4). It matters little to a business owner
or employee that Defendants intended for the restrictions to be temporary. They were, and
remain, open-ended and subject to imposition at the sole discretion of Defendants. The fact that
Plaintiffs’ businesses were only temporarily shutdown does not preclude a finding that the
shutdown violated their liberty interests. The nature of a state-wide shut down of “non-life-
sustaining” business is such an immediate and unprecedented disruption to businesses and their
employees as to warrant constitutional review.
The Supreme Court has recognized that the “core of the concept” of substantive due
process is the protection against arbitrary government action. Lewis, 523 U.S. at 845 (citing
Hurtado v. California, 110 U.S. 516, 527 (1884)).?8 Indeed, “the touchstone of due process is
protection of the individual against arbitrary actions of government... .” Jd. Rational basis
review is a forgiving standard for government acts, but it “is not a toothless one... .” Mathews
Lucas, 427 U.S. 495, 510 (1976). As a general matter, the rational basis test requires only that
the governmental action “bear[] a rational relationship to some legitimate end.” Romer v. Evans,
517 U.S. 620, 631 (1996). Conversely, actions which are irrational, arbitrary or capricious do
not bear a rational relationship to any end. Cty. Concrete Corp. v. Town of Roxbury, 442 F.3d
159, 169 (3d. Cir. 2006) (quoting Pace Resources, Inc., v. Shrewsbury Twp., 808 F.2d 1023,

28 “As to the words from Magna Charta, incorporated into the Constitution of Maryland, after
volumes spoken and written with a view to their exposition, the good sense of mankind has at
last settled down to this: that they were intended to secure the individual from the arbitrary
exercise of powers of government, unrestrained by the established principles of private right and
distributive justice.” Lewis, 523 U.S. at 845.
55

1035 (3d Cir. 1987)) (Thus, for appellants’ facial substantive due process challenge to the
Ordinance to be successful, they must ‘allege facts that would support a finding of arbitrary or
irrational legislative action by the Township.’””). Even with this forgiving standard as its guide,
the Court nevertheless holds that the March 19, 2020 Order closing all “non-life-sustaining”
businesses was so arbitrary in its creation, scope and administration as to fail constitutional
scrutiny.
The record shows that the Governor’s advisory team, which designated the Business
Plaintiffs and countless other businesses throughout the Commonwealth as “non-life-sustaining”
and, thereby, closing them, did so with no set policy as to the designation and, indeed, without
ever formulating a set definition for “life-sustaining” and, conversely “non-life-sustaining.” The
terms “life-sustaining” and “non-life-sustaining” relative to businesses are not defined in any
Pennsylvania statute or regulation. Mr. Robinson explained that Defendants’ policy team used
the North American Industry Classification System (NAICS) as a component of their
determination of how to classify businesses. (ECF. No. 39, p. 2). The NAICS is a manual used
by federal statistical agencies in classifying businesses for the purpose of collecting, analyzing,
and publishing statistical data related to the U.S. economy. (ECF. No. 39, p. 2). The NAICS
does not classify businesses into “life-sustaining” and “non-life-sustaining” categories. It does
not even use the terms. Rather, it merely divides the economy into “20 broad sectors and 316
industry groups.” (ECF No. 39, p. 2). It was the policy team that made the dec

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10416348. Public record. Not legal advice.